Karnataka High Court
Sri Krishnarajendra Charitable Trusts vs The Union Of India on 9 September, 2020
Author: R Devdas
Bench: R Devdas
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE R DEVDAS
WRIT PETITION NO.19231 OF 2018 (EDN-RES)
BETWEEN
SRI KRISHNARAJENDRA CHARITABLE TRUST'S
INDIAN INSTITUTE OF AYURVEDIC MEDICINE
AND RESEARCH,
BANGALORE PALACE COMPOUND,
JAYAMAHAL ROAD, OPP: DARGA,
BENGALURU 560006.
REP BY ITS CHAIRMAN,
SRI. L K RAJU,
S/O. LATE. B V MUNIRAJU
AGED ABOUT 75 YEARS.
...PETITIONER
(BY SRI ABHISHEK MALIPATIL, ADVOCATE)
AND
1. THE UNION OF INDIA
MINISTRY OF AYURVEDA,
YOGA AND NATUROPATHY,
UNION SIDDHA AND HOMEOPATHY (AYUSH),
'AYUSH BHAWAN', B-BLOCK,
GPO COMPLEX, INA,
NEW DELHI 110023,
REP BY ITS SECRETARY/SPECIAL SECRETARY.
2. THE CENTRAL COUNCIL OF INDIAN
MEDICINE, 61-65,
INDUSTRIAL AREA, JANAKAPURI,
NEW DELHI 110058.
REP BY ITS SECRETARY
3. THE RAJIV GANDHI UNIVERSITY OF HEALTH,
4TH 'T' BLOCK, JAYANAGAR,
BENGALURU 560041.
REP BY ITS REGISTRAR
2
4. THE STATE OF KARNATAKA
DIRECTORATE OF AYUSH,
DHANAVANTRI ROAD,
BENGALURU 560009.
REP BY ITS DIRECTOR
...RESPONDENTS
(BY SMT PRAMODHINI KISHAN, AGA FOR R4
SMT BIRDY IYAPPA, ADVOCATE FOR R1
SMT MANSI KUMAR, ADVOCATE FOR R2
SRI N K RAMESH, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DTD :12.1.2017 ISSUED BY THE R-1
VIDE ANNEXURE-K AND ETC.
THIS WRIT PETITION IS COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
R. DEVDAS J., (ORAL):
The petitioner is aggrieved by the order dated 12.01.2017 passed by the first respondent-Central Government, rejecting grant of permission for the increase in intake capacity from 45 to 60 seats from the academic year 2016-2017.
2. Learned Counsel for the petitioner submits that the petitioner-Institution was granted permission to conduct UG (BAMS) Course with intake capacity of 45 seats by order dated 12.01.2017. However, by the 3 very same order, the application for the increase in the intake capacity was declined.
3. Insofar as the power vested with the Central Government regarding inspection, the learned Counsel submits that the said question was dealt with, in respect to the very same petitioner by a co- ordinate Bench in W.P.No.51249/2017 and connected matters which were disposed of on 15.07.2019. It was pointed out from the said judgment that the co-ordinate Bench while relying on the decision of the Apex Court in the case of Temple of Hanemann Homeopathic Medical College and Hospital Vs. Union of India and Others reported in AIR 2018 SC 3699, held that the provisions of Indian Medical Council Act, 1970 as well as Act, 1973, are in pari materia. Section 12-A of the Act, 1973, contemplates permission for establishment of new Medical institution, new course of study etc., which comes under Chapter II(A) relating to permission for establishment of new Medical Institution, new course of study etc., whereas, 4 Chapter III deals with recognition of medical qualifications. Sections 17, 18 and 19 deals with inspectors at examinations, visitors at examinations, withdrawal of recognition. It was held that the said provisions are identical to the provisions of IMCC Act 1970. It was noticed that the Hon'ble Apex Court, while analyzing Regulation 3(5) of the Regulations, 2013 observed thus:
"Regulation 3(5) of the 2013 Regulations envisages random checks to be ordered on receipt of a complaint or otherwise as deemed necessary either by the Central Government or by the CCH. In case, CCH or Central Government receives any complaint, random checks can be ordered, but the regulations stop at that. It does not deal with the aspect who will appoint a team of inspectors for the purpose of inspection to be carried out. In our considered opinion, it is only the Central Council which is empowered to appoint a team of inspectors under Section 17 and visitors for the examination under Section 18 for making recommendation to the Central Government on the basis of report 5 submitted by the team of inspectors or visitors as envisaged under Sections 17 and 18 of the Act.
Regulation 3(5) of Regulations of 2013 has to be harmoniously interpreted with the provisions of section 17 of the Act not repugnant thereto. The provision of section 17 is not capable of interpretation empowering the Central Government to appoint a team of inspectors at all. Thus, the power conferred under section 17 has to be exercised only by the CCH. Any other interpretation would be against the legislative mandate. The regulations have to be subservient to the provisions of the Act. No other provision could be pointed out under which the Act may have conferred the power upon the Central Government to appoint a team of Medical Inspectors.
Thus, the Division Bench of the High Court has clearly erred in holding that the power to appoint the Inspectors is with the Central Government while interpreting Regulation 3(5) of the Regulations, 2013. The Central Government cannot appoint a team of Inspectors as this power has not been conferred upon the Central 6 Government either under the said Regulation 3 (5) or any of provisions contained in the Act. It is only CCH which can appoint a team of inspectors as per Section 17 if the request is made by the Central Government under Regulation 3(5).
In our opinion, though Central Government on a complaint or otherwise, as contemplated under Regulation 3(5) of the Regulations, 2013 may cause inspection would mean only that inspection to be made by a team to be appointed by CCH. A team of inspectors or visitors as the case may be, can be appointed by CCH under Section 17 or 18 of the Act. However, after an inspection is made, action has to be taken on the basis of the report as provided under the Act and the Regulations by the Central Government on the basis of the recommendation made by the CCH."
4. Consequently, noticing that the inspection team/investigating committee appointed by the Ministry of AYUSH is not competent to conduct inspection, it was held that it is the Central Council 7 which is empowered to appoint the team of inspections or visitors, as the case may be, whether regarding permission or recognition as contemplated under Chapters II and III of the IMCC Act 1970.
5. Consequently, the orders passed by the Central Government rejecting the application made by the petitioner for the period of five years from the academic session 2014-15 to 2018-19 with 45 seats, were quashed and set aside. The respondents were directed to accord/grant permission to the petitioner- institution for the academic year 2017-18.
6. The prayer in the present writ petition is to quash the impugned order dated 12.01.2017 rejecting the permission to the petitioner-Institution for increase in the intake capacity from 45 to 60 seats. Learned Counsel for the petitioner submits that in view of the decision of the co-ordinate Bench regarding the powers and functions of the Central Government and in view of the quashment of the impugned orders passed by the Central Government, a direction may be issued to the Central Government 8 to reconsider the application made by the petitioner- Institution with respect to the increase in the intake capacity from 45 to 60 seats.
7. Learned Counsel for the second respondent- Central Council of Indian Medicine (CCIM) submits that the application made by the petitioner- Institution seeking increase in the intake capacity was for the academic year 2016-2017 and therefore the question of directing the respondents to reconsider the application for the next academic year would not arise. The learned Counsel would also add that insofar as the inspection on the application seeking increase in the intake capacity, it was the CCIM which conducted the inspection and not the Central Government.
8. Having heard the learned Counsels and on perusing the petition papers and the decision of the co-ordinate Bench in W.P.No.51249/2017, and having regard to the fact that the submission of the learned Counsel for the petitioner is only to direct the respondent-Central Government to consider the 9 application regarding increase in the intake capacity for the next academic year, this Court is of the considered opinion that such a request is reasonable.
9. As rightly pointed out by the learned Counsel for the petitioner and the learned Counsel for the respondent-CCIM, the CCIM had in fact, recommended the increase in the intake capacity as seen in the impugned order dated 12.01.2017 at Annexure 'K'. The technical objection that the application itself was made seeking enhancement of the intake capacity for the academic year 2016-2017, therefore for the next academic year, the petitioner- Institution is required to make a fresh application, is too technical. Moreover, as rightly pointed out from the impugned order the application for permission to increase the intake capacity for the existing UG(BAMS) course, is from the academic session 2016-2017.
10. Therefore, there is no harm if the respondents are directed to consider the application filed by the petitioner-Institution for increase in the 10 intake capacity for the next academic year. If permission is granted for increase in the intake capacity, the petitioner-Institution will make necessary application for conditional permission thereafter for the subsequent years.
11. Consequently, the impugned order dated 12.01.2017 at Annexure 'K' is hereby set aside. The first respondent-Union of India is hereby directed to reconsider the application made by the petitioner seeking increase in the admission capacity from 45 to 60 seats in the existing UG (BAMS) course for the next academic year. The Union of India is required to consider the application as expeditiously as possible and at any rate within a period of two months from the date of receipt of a certified copy of this order.
Writ petition is accordingly allowed.
Sd/-
JUDGE JT/-